1. DORAB PATE,J. -The dispute in this petition for leave relates to a shop in the main bazar of Sargodha, to which we will refer as the said shop. The said shop is one of the many shops situated in a building owned by the respondents and the petitioner's claim is that he had illegally and forcibly occupied this shop on a Friday in 1955 and that thereafter he had remained in adverse possession of the said shop, therefore, sometime in 1972 he filed a suit against the respondents in the Court of the Administrative Civil Judge, Sargodha, for a declaration that he had become the owner of the said shop by adverse possession.
2. The suit was contested by the respondents and in order to prove his claim, the petitioner examined himself and two other witnesses Ghulam Mustaqeem and Feroze Din. Both these witnesses according to Mr. Shaukat Ali , had said in their evidence that they had happened to pass by the said shop when they saw the petitioner break into it and occupy it. However, the petitioner did not examine any of the neigh--bouring shopkeepers in support of his claim nor did he produce any documentary evidence. The respondents on the other hand, examined their agent, Muhammad Boota, who said that he had regularly collected rent from the petitioner until about two years before the suit when the petitioner refused to pay rent. The respondents had also tried to prove that the petitioner had from time to time remitted rent to them by money order. They also relied on the records of the local municipality to prove their ownership of the building in which the said shop was situated and in order to prove that the petitioner was the tenant of the said shop.
3. We pointed out that the respondents had produced the records of the local municipality in order to prove their assertion that the petitioner was the tenant of the said shop. Now, according to the trial Court, the witness who produced the relevant documents had "said the name of the tenant in possession of (the said) shop is not recorded". Therefore, without examining the documentary evidence produced by the respondents the trial Court held that this documentary evidence did not support their defence. The trial Court also rejected the evidence or the money orders which according to the respondents they had received from the petitioner. Finally, as the witness examined by the respondents, Muhammad Boota, the trial Court had no hesitation in rejecting his evidence, because it was very highly impressed by the evidence of Ghulam Mustaqeem and Feroze Din. But, even according to Mr. Shaukat Ali, these witnesses had merely given evidence in support of the petitioner's claim that he had occupied the said shop by breaking into it. As the witnesses did not, even according to Mr. Shaukat Ali, attempt to throw any light on the question whether, after his illegal occupation the petitioner had claimed adverse possession against the respondents, it is strange that the trial Court thought that this oral evidence was sufficient to prove the petitioner's title. Be that as it may, because it was highly impressed by this oral evidence and because the respondents did not themselves go in the witness box, it decreed the petitioner's suit.
4. In a much more careful appreciation of evidence, the learned District Judge, who heard the appeal of the respondents, examined the evidence of Ghulam Mustaqeem and Feroze Din and then observed: - " they just happened to be passing by when the plaintiff was breaking open the shop in question.
5. Then, to remember the day and time when the breaking of the shop occurred, as these witnesses claim to do, is not less than a feat of prodigious memory. The memory of Feroze Din P W was duly tested, and it turned out that it was not so remarkable as he claimed it to be, he did not know on which day the last ---Eid--- fell : nor was he able to tell the date of the last ' Juma-tul-Wida'. It is, therefore, diffi--cult to believe that at this distance of time, these P. Ws. Could remember the day and time of the incident."
6. The learned District Judge then proceeded to examine the documentary evidence produced by the respondents, and after scrutinising the copies of the assessment registers of the Sargodha Municipality the learned District Judge pointed out that according to some of these copies the petitioner had been shown as the tenant of the said shop. The learned District Judge also held that no adverse inference should have been drawn against the respondents for their failure to give evidence. Accordingly, for these and other reasons by his judgment dated 4th May, 1977, he allowed the appeal of the respondents.
7. The petitioner, therefore, filed a second appeal in the Lahore High Court which was heard and dismissed by a learned Single Judge of the High Court. After a careful re-examination of the evidence (we say so with respect) the learned Single Judge agreed with the findings of the first appellate Court and further noted with regret that the trial Court has failed to appreciate the nature of the burden of proof on a plaintiff, who claims title by adverse possession, therefore, by his judgment dated 24th February, 1979, he dismissed the petitioner's appeal. Hence this petition for leave.
8. Mr. Shaukat Ali submitted that the appellate Courts had erred in holding that Feroze Din and Ghulam Mustaqeem were chance witnesses. But their evidence has not been rejected only on this ground. As we showed earlier, the learned District Judge found that Feroze Din was a witness with a very poor memory. In this background, he reached the conclusion that it would not be safe to rely on oral evidence about an incident which had taken place seventeen years ago. In reaching this conclusion, the learned District Judge has shown a correct appreciation of the heavy burden of proof which falls on the plaintiff who claims title by adverse possession. Additionally, as we indicated earlier, it was not enough for the petitioner to prove that lie had broken into the said shop. He had also to prove that he had claimed adverse possession of the said shop for twelve years, and, therefore, he had to give evidence of the overt acts in support of this claim. But presumably on the principle that discretion was the better part of valour, learned counsel did not refer us to any such evidence.
9. On the other hand, the evidence of the records of the Sargodha Municipality furnishes some evidence in support of the claim of the respondents and after re-examining this evidence, the learned Single Judge observed: - "Respondents' oral evidence, apart in the assessment record of the Municipal Committee for the assessm ent years 1960-61, 1962-63 to 1967-68 Exhs. D/2, D/3, and D/4 respectively. Nawab Allah Bux Tiwana and the respondent No. 2 are mentioned as owners of the shop. Similarly in the assessment record of Taxation Department Exh, D/5 (1972-73),Exh. D/6 (1967-68) and Exh, 7(1962-63), the appellant is recorded as a tenant and the respondents are shown as owners of the property..."
10. Mr. Shaukat Ali only relied on a concession made by a clerk of the Municipality in the petitioner's favour. But in view of the documentary evidence, referred to by the learned Single Judge in his observations, it is clear that the concession made by this witness was an obliging concession.
11. Additionally, as rightly observed by the learned Single Judge, it was not enough for the petitioner to prove that he had occupied the said shop illegally, the more so, in view of the evidence of Muhammad Boota. In view of that evidence, he had to give evidence in rebuttal of overt acts of adverse possession. Nor would this have been difficult if there had been any truth in his claim of open adverse possession. Thus, for example, if he had really asserted his title to the said shop, he would not have stood by and permitted the respondents to pay rates and taxes for the said shop to the local Municipality, as rightly, observed by the learned Single Judge in the judgment under appeal. Mr. Shaukat Ali therefore, submitted that the view taken by the learned Single Judge was contrary to that taken by Faizullah Khan, J. (as he then was) in Haji Muhammad Ramzan v. Mian Jamil Shah PLD 1967 Pesh. 380 The judgment cited is distinguishable on the facts and is of no help to the petitioner's claim, but in view of the importance of the question, we may point out that .4Tuhammad Ramzan's case was a rent ' case, and because the landlord had not, according to Faizullah Khan, J., "led any reliable evidence to show how he acquired" the property in dispute, Faizullah Khan, 1., held that the entries in the Excise and Taxation Register were not sufficient to prove the respondent's claim that he was the landlord of the property in dispute. Clearly the obser--vation of Faizullah Khan, J., that the extracts of Excise and Taxation Register were not sufficient to prove the respondent's title had reference to the peculiar facts of the case and we would not extend the rule laid down in this case to the instant case. On the other hand, having given anxious thought to the question, we are satisfied that the failure of the petitioner to pay local rates and taxes is a circumstance which militates strongly against his claim for adverse possession, and the learned Single Judge has rightly drawn an adverse inference against the petitioner because he had never, at any time, even attempted to pay local rates and taxes on a property of which he claimed to be the owner.
12. Mr. Shaukat Ali then pointed out that the respondents had not given evidence and submitted that an adverse inference should be drawn against them for their failure to go in the witness box. There is no force in this submission, because it is not the petitioner's case that he had ever met the respondents. And, on the other hand, it is clear from the judgment under appeal that the respondents had dealt with the petitioner, through their agent Mohammad Boota, therefore, there was nothing about which they could have given evidence, and the Rent Controller erred in law in drawing an adverse inference against the respon--dents, because they had not wasted their time by giving evidence about matters of which they had no personal knowledge.
13. In the result, we agree with the concurrent findings of the appellate Courts. But, in any case it is very clear that the concurrent findings of the two appellate Courts are supported by ample evidence, therefore, the question of granting leave does not arise.
14. Mr. Shaukat Ali's only other submission was that the appeal filed by the respondents in the district Court was time-barred. The question turns entirely on the date on which the respondents had obtained the certified copy of the trial Court's judgment and decree and according to Mr. Shaukat Ali the appeal was time-barred, because the certified copies of the judgment and decree had been supplied to the respondents on the 14th of November. On the other hand, according to the respon--dents, they had obtained the certified copy of the trial Court's judgment on the 21st of November and if their plea be true, Mr. Shaukat Ali admitted that the appeal was in time.
15. The petitioner has filed a photostat copies of the entries made by the trial Court about the date on which the judgment had been prepared and supplied to the respondents, and as submitted by learned counsel there is overwriting on the date. The date could be 14th November, or 21st November. And, in order to satisfy himself that the appeal was in time, the learned District Judge had examined one Muhammad Bashir, a clerk of the copying branch of the trial Court, and after care--fully examining his evidence, he accepted the plea of the respondents and allowed their appeal. The plea of limitation was then repeated before the High Court by the petitioner with obvious vehemence, there--fore, it was examined in detail by Lone, J., who agreed with the view of the District Judge.
16. The contention of the petitioner relates essentially to a question of fact and as the concurrent findings were against him, M. Shaukat Ali submitted that a casual perusal of the entries in the copy supplied to us would show that the certified copy had been supplied on the 14th of November, and not on the 21st of November as claimed by the respon--dents. We have examined the entries on this photostat copy with the assistance of Mr. Shaukat Ali, but we regret our inability to accept his submission. There is a interpolation over the date, and although it is difficult to decipher the figures on the whole, we do not think that the figures ---21--- have been interpolated over the figures "14" as claimed by Mr. Shaukat Ali. Therefore, we are unable to accept learned counsel's submission.
17. In the result the petition is without merit and is dismissed.